Despite rulings that kept evidence from them, the jury was able to see Michael Rafferty for what he is: a child-killer.

I have seen stupid juries, none more so than the panel that acquitted a young mother of murdering her baby, even though she led police to where the body was hidden beneath a boulder, information the woman said had come to her “in a dream.” It was a verdict based on pity for the traumatized accused.

But I have also seen stupid judges who put justice at risk because they cleave to a standard of evidentiary admissibility that defies logic, precedent and the sacred duty of jurors to fairly, intelligently, weigh the merits of a case at trial. The difference between a judge and a juror is that one assumes a superiority of perception and sagacity while the other, unschooled in the finer distinctions of jurisprudence, can bring only common sense and native intelligence to the task at hand.

That juries so often get it right is a credit to their capacity for cutting through the obscurity and obstruction that too often emanates from the bench in Canadian courtrooms. The Michael Rafferty jury did that Friday night with apparently remarkable ease and palpably assured composure, bringing guilty verdicts on first-degree murder, kidnapping and sexual assault causing bodily harm in the slaying of 8-year-old Tori Stafford.

The imbalance between competing interests grows ever more stark and difficult to accept, even for those of us who believe this country is second to none for fairness and integrity in the courts. But I’d have more faith in judges if they demonstrated more faith in juries and were a tad less concerned — by my reckoning — with rendering their cases appeal-proof. No judge wants a case overturned on appeal because he or she allowed into evidence material subsequently deemed overly prejudicial or with insufficient probative value.

This delicate weighing act is addressed every day in our courtrooms and the parameters are constantly evolving, adjusted by appeal court decisions. Erring on the side of caution is perfectly understandable, especially when buttressed by legal antecedents. Yet there is still such a thing as hyper-prudence and excessive circumspection, the anti-judicial premise of: if in doubt, leave it out.

In the Rafferty trial, Heeney left out, forced out, a slew of evidence that became public knowledge only after the jury retired to deliberate, rulings of admissibility made largely in pre-trial arguments but also after proceedings got underway in the London courthouse, with the jury sent out of the room. Crucially, jurors never learned of material retrieved from Rafferty’s laptop computer showing that he’d done Google searches on such topics as “underage rape,” that he had an unhealthy interest in child pornography and bestiality, that he’d trolled necrophilia websites, that he’d downloaded movies about child kidnapping and child sex killing as recently as 12 days before Tori’s abduction.

To a considerable degree, police investigators bear responsibility for this exclusion of evidence because they failed to obtain the secondary search warrant required to make use of electronic searches from a seized computer. At that time, this was not yet a conclusively determined legal area, though; courts were making it up as they went along, waiting for taller heads to definitively rule. Not long after Rafferty’s computer came into police possession, this was done. But both then, and even now, judges are afforded discretion in how that ruling is applied by weighing the relevance of material obtained from computers, cellphones and other electronic sources — as they do with any type of evidence.

Indeed, in the case where such precedence was established — the high-profile murder trial of Markham salesman Chris Little, who slashed the throat of his estranged wife and strangled a second woman, trying to make it look like a murder-suicide — the presiding judge, Ontario Superior Court Judge Michelle Fuerst, concluded police needed to seek a secondary warrant before examining the contents of Little’s cellphone. Yet Fuerst, while finding there had been a Charter breach, admitted the evidence anyway.

That’s what wise judges do; they weigh the relevance. They balance the probative versus the prejudicial when evidence is contested. Generally speaking, probative means “tending to prove” an allegation, matters of evidence that make the existence of something more or less probable than it would be without them. Prejudicial refers to evidence that could inappropriately influence the triers of fact — jurors — by, say, appealing to emotions or biases, causing them to make improper inferences about the accused. This is why similar fact evidence is usually excluded: if a defendant committed a rape, for example, five years earlier, that crime can’t be used to show that he is more likely to be guilty on a charge of sexual assault before the court today. Similarly, “bad character” evidence that could be used to impugn the reputation of an accused is invariably excluded. Jurors must not prejudge a defendant. They can only consider the facts put before them in the case being tried.

It all makes abundant sense, especially in the abstract. Innocence is always assumed unless and until proven otherwise. That’s a cornerstone of the law. In the specific, however, and most especially when superimposed with “what the jury didn’t know” stories, it becomes infuriating and often unfathomable. The law should not be so inexplicable, impenetrable, for ordinary folk. It shouldn’t be a law unto the judiciary alone.

Too many judges — evidently Heeney among them — take a condescending view of juries. They say all the right things, like “we’re not withholding anything from you” when juries are trotted out of the room for legal arguments. This is patently false because they are withholding, not just the legal wrangles that take place on the head of a pin but the quantifiable facts as well.

It is as if juries can’t be trusted with the truth. It is infantilizing.

Michael Rafferty is a man of bad character. He is a sexual deviant. He is a child-killer.

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